In defence of the Human Rights Act

My immediate response to the news of Conservative plans to abolish the Human Rights Act was “if they get away with that, I’m emigrating”. A day later I found myself thinking, “but they can’t abolish the right to life, the rule against slavery, the right to a free trial, surely all these principles will survive, won’t they?” Thinking the issue through; it would undoubtedly be a collective defeat, but not quite in a way that anyone in the press has ever properly explained.

For the institutions of “Europe” (I will be more precise shortly about which bits of Europe shortly), the repeal of the HRA on the terms the Conservatives propose – without withdrawal of the EU, but with the repatriation of decision-making to the domestic courts – would be an existential challenge. The Conservatives are saying that the Council of Europe will voluntarily consent to give up its present arrangement where the European Courts of Human Rights oversees the work of the national courts in ensuring that human rights are implemented. And the ECHR will accept in future some shadow existence where domestic governments are empowered to simply ignore any decisions the Court makes.

The ECHR system was not manufactured around the needs of the Conservative Party, it has grown in recent years in response to different needs. In 2013, 1600 complaints were made about decisions of the UK state; twice as many cases concerned Serbia, three times as many emanated from Poland and Romania, six times as many came from Turkey and Ukraine, and fifteen times as many came from citizens of Russia. The Conservative policy amounts to saying (for example), if the European Court of Human Rights is faced with a state like Hungary, which has practised open discrimination against Roma people, eg excluding their children from public education, and the ECHR finds that Hungary conduct has breached the basic human rights of its citizens, it would be better if Hungary could override the ECHR and continue with its discriminatory policies.

Such a change would make the ECHR, and the Council of Europe around which it is based, toothless and meaningless organisations. (It would hardly do anything for the legitimacy of the European Court of Justice, either).

There are bodies in the world which have paper “courts”, which make purely advisory declarations, which have no enforcement mechanism and which risk being subsequently ignored. There are also bodies which operate meaningful courts, with proper sanctions and widespread international respect. I struggle to think of any comparable situation in recent history where one of the latter has agreed – after 50 years of steady institutional growth – to give up its powers and become one of the former instead.

This context helps to explain why Conservative critics of the proposal to abolish the HRA have termed the plan “puerile” – if the policy is taken at face value, it is laughably silly to think that the Council of Europe would voluntarily consent to so diminishing the European Court of Human Rights. On the other hand, if you see the plan as a step in an internal Tory civil war, then it makes much more sense. After the next election, a majority government led by David Cameron is supposed to march on the European Union and demand a renegotiation of the European Treaty. If this fails, the government is supposed to call an in/out referendum on Britain’s continuing membership of the EU. How is anyone supposed to know whether Cameron’s negotiations have achieved enough so that the need for a referendum has been averted? The negotiated abolition (or not) of the European Court of Human Rights becomes a practical test of whether Cameron (distrusted by his fellow Tories as supposedly a closest Euro enthusiast) and his negotiators have actually delivered on their promises. “You failed to persuade Europe to give up the ECHR; therefore we have no choice but to leave.” The process is not intended to be a negotiation – any discussion is being scotched in advance – but the announcement of a series of ultimatums which no one could grant.

Activists on the left used to call this kind of impossibilist demand-making “transitional” – now we find the method being reversed by a Tory right which is almost incandescent in its anger with the world’s ongoing unease at the pace of neo-liberal encroachment.

I have written at length about the European aspect to HRA abolition, but how much would people living in Britain lose if the rights in the ECHR ceased to become “justiciable” ie things which a person can enforce?

One common approach of the commentators has been to point out how the rights in the ECHR were themselves drawn up by British jurists in the aftermath of the second world war to codify principles that were already in the British common law. This may or may not make good politics – by pointing to the domestic origins of the ECHR, you make the Convention seems less threatening. But in so far as it gives the impression that the arrival of the HRA did nothing of significance, it hardly justifies many lawyers’ feeling that we could be at the start of a sustained attack on people’s rights, deeper than anything we have seen in over a century.

A second approach has been to focus on the detail of the policies, to point out that the Conservatives plan appears to be to give Parliament a permanent veto over rights analysis by the courts, to note that any rights now in the HRA (even to the extent that they are retained at all in a “British bill of rights”) are only going to be watered down, and to refer to a particularly worrying proposal that rights – in general – are to depend in future only on complying with certain (as yet unspecified) responsibilities. This, after all, is exactly where rights discourse became a cause capable of shaping the lives of millions: in rejection of the discourses of very many of European states in the 1930s and 1940s which said that every citizen has absolute rights except the Jews or the Communists who by their conduct have forfeited them. A right is a human right because it is a right to which everyone has access. If a right is not a right in defence of a despised group, then in what sense is it a right at all?

Deep within the proposed post-HRA landscape is the idea that UK judges, armed with the common law, can come to rights-compliant decisions without foreign interference so that most people are just as well protected as they ever were before. One thing which has been missing is the explanation that the HRA was much more of a change to the UK’s legal landscape than New Labour was ever willing to admit. Before the HRA, many but not all of the rights in the Convention had established deep roots in the UK common law. For example, fair trial rights: for centuries, the UK had jury trial, rules against hearsay evidence, the double jeopardy rule, etc. But because these originated in common law (ie decisions made by judges in individual cases), there was always something piecemeal about them. They were vulnerable to legislative attack – and two of the three protections I have mentioned barely exist any more.

The simple facts that the HRA is a single document, codified, and attached to an extensive Strasbourg case law, have made it a vastly preferable starting point – from the perspective of restraining bad decisions taken by government – than the incoherent, buried patchwork of domestic cases (the “common law”) that were all lawyers had before.

If it is true that the Convention had originally been drafted by lawyers who included many from the UK and even many Tories; it is also true that once the Convention had been analysed by a postwar cadre of Christian Democratic European judges who took its language seriously, it took on a number of aspects which protected rights with more care than the UK had ever done. There is no common law right of privacy; there is something akin to a right of privacy in article 8.

The blacklisted construction workers are fighting their battles on the ground of articles 8 (privacy) and 11 (freedom of association); the companies and the state which protected them respond that UK’s domestic law do not protect agency workers. The outlines of this conflict, with rights on the hand, and domestic legislation on the other, have been repeated continuously in recent years – in employment, housing, asylum and inquest law. Article 8 and article 6 combined have been interpreted as meaning that no tenant of the state can be evicted without at least an opportunity of explaining to the court why their personal circumstances are such that an eviction would be disproportionate. That understanding was won through the repeated overruling of the old House of Lords and is miles ahead of anything that domestic law reached.

It may even be under the Conservatives’ plans that every one of articles 2 to 14 has a counterpart in a new domestic statute, but each of these rights will be diminished, and the courts will have been given the strongest possible steer to protect decisions by government even where they are so bad that they are – at present – unlawful.

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I thought Mark Elliott‘s commentary on this was particularly good. As I said in comments there, I think these proposals need to be taken seriously even if they’re pure gesture politics. Through the blather, you can see the outline of a reasonably coherent post-ECHR order, in which human rights would be a dead letter (no trivial cases, no cases brought by people who haven’t fulfilled their responsibilities, no reading down and no binding of Parliament – what does that leave?). If you put it all together it’s pretty nightmarish – not quite an Enabling Act, but certainly an Enabling Act for an Enabling Act. But Grayling & chums are at least prepared to talk about wanting to bring it about.

Looking on the bright side, you wouldn’t have to emigrate very far. Scotland would do, or – if you want the ECHR really nailed down – Northern Ireland.

Thanks Phil for the link – I’d read the Elliott piece as well, and you’re right, it is a good one. I see there that you’ve described the proposals as a “Dear John letter to international law” – which is the point I was trying to make in the first half of mine. And Scotland isn’t so far…

Agreed also about the coherence. I don’t know if you followed the Commission on a Bill of Rights (cue a link to an old piece of mine here: http://www.struckout.co.uk/the-human-rights-act-still-under-threat/). But it seems that in the year and a half since that fizzled out the ministers have been working hard on the proposals. The fag packet on the back of which they were originally written down has become an A5 envelope. Just not, in any meaningful sense, a Bill of Rights